Jones v. Patterson Contracting, Inc.

feelings of resentment held prejudices and jury. concur.

I therefore

524 S.E.2d 915 Jones, and Lori

Sherman JONES Below, Appellants,

Plaintiffs

v. CONTRACTING, INC., a

PATTERSON Virginia Corporation; and

West Grasan

Equipment Company, Corpora- an Ohio

tion, Below, Defendants Inc., Equipment Company,

Grasan Corporation, Defendant

Ohio

Below, Appellee. Jones, Plaintiffs

Sherman Jones Lori

Below, Appellants, Inc., Virgi- Contracting, a West

Patterson Equip- Corporation;

nia and Grasan Company, Corporation,

ment an Ohio Below,

Defendants Contracting,

Patterson a West

Virginia Corporation, Defendant

Below, Appellee.

Nos. 25960.

Supreme Appeals Court Virginia. Sept. 1999.

Submitted

Decided Nov. 1999. Opinion

Concurring Dissenting Davis Nov.

Justice Rosinsky

Timothy Rosinsky, Esq., Law P. Offices, Virginia, Attorney Huntington, West Appellants. Huddleston, alleged that Sanders, Esq., ping him in the chute. He has Mary Bo- H. back, neck, inju- Charleston, psychiatric he sustained len, Copen, Beatty, Porter & as a result of the accident. Attorney for Patterson Con- ries Virginia, West tracting. Appellants instituted a civil action Logan County against the Circuit Court of MacCorkle, Casey, Esq., Laven- Anita R. intent upon Patterson the deliberate based Charleston, Casey, West der & statute, § Virginia Code 23-4- West Shumacher, Francis, Esq., Francis R. Ford 2(c)(2)(ii)(A-E) (1994), against on Grasan Nelson, Charleston, Virginia, Attor- & liability products theory. Trial commenced Equipment Company. neys for Grason 13,1998, through July July and continued granted 1998. The lower court directed PER CURIAM: defendants, in of both entered verdicts favor 28, 1998, Patterson, July dated .order appeal by and Lori This is an Sherman 27, 1998, August Appel- and for Grasan. (hereinafter July “Appellants”) from Jones appealed lants thereafter to this Court. 27, 28, 1998, August orders of the and Logan County granting di- Court of Circuit Entry II. Review of a Lower Court’s in favor of Patterson Con- rected verdicts of a Directed Verdict Equipment tracting, and Grasan Com- 50(a) Virginia Rule of the West (hereinafter “Patterson,” “Appellees,” pany party Rules of Civil Procedure authorizes a “Grasan”).1 Appellants maintain that A to move for a directed verdict. circuit granting in the direct- the lower court erred in court should direct a verdict the defen verdicts, expert testimony was im- ed “ evidence, plaintiffs if dant’s favor ‘the con consideration, and properly excluded from him, light sidered in the most favorable to Appellants’ evidence of deliberate prima right fails to establish a facie to recov properly evaluated. We con- intent was ” ery[.]’ Syl. part, Pt. in v. Brannon granting erred in clude that the lower court Riffle, W.Va. Grasan, in the directed verdict favor of but Gale, (quoting Syl. part, Pt. Roberts v. we affirm the directed verdict favor of (1964)). S.E.2d Patterson. Brannon, syllabus point three of this Court I. Facts explained as follows: 15, 1995, Jones, May On Mr. Sherman appellate standard of review for the Cora, employed by Appellee Patterson at granting of a motion for a directed verdict Virginia, operating was a rock crusher pursuant to Rule 50 of the West by Appellee manufactured Grasan. Mr. Procedure is de novo. On Rules Civil injured placed his head and court, Jones as he considering appeal, after this upper body into a in the rock light chute crusher evidence in the most favorable to manually attempt dislodge in an dirt which party, granting will nonmovant sustain clogged only had become in the machine.2 While of directed verdict when one reason- chute, cleaning from can dirt and rock dust able conclusion as to the verdict be Jones, reached. But if could trap- within the machine fell on Mr. reasonable minds ary operated by 1. The directed verdict in favor of Patterson was rock crusher Mr. Jones. The 28, 1998, July Appeal dumped entered on and Number material was into a "shaker bin” which granted by 25960 was this Court on that issue. through open- vibrated to move the material verdict in favor of was en- The directed Grasan ing "jaws.” into the As the material moved August Appeal tered on Number along conveyor jaws, toward the smaller rocks granted by Court 25960 was on issue. they passed and dirt were removed as over a appeals were thereafter two consolidated. grate top collecting chute. The metal occasionally clogged, rock chute became as in crushing process originated at Patter- The rock this instance. Quarry son’s an end loader was used to where rock, dirt, gravel load into trucks. The transported trucks then the material to a'station- sufficiency upon importance alleged familiarity lack of differ as with the ruling mining industry a circuit court’s particu- standards of the court, however, permitted lar.- The granting a directed verdict will be re- lower trial, testify Mr. explaining versed. Colombo “I question follows: think this is a of what evaluating request for a direct weight give to his and the verdict, syllabus point Wager five of ed give weight will appropriate.” whatever Sine, (1973), Mr. Colombo testified that he was familiar that “all instructs reasonable doubts and in chutes, conveyors, and material han- ferences should be resolved in favor of the dling. Having photo- viewed numerous party against asked to whom the verdict is “ ‘ graphs videotapes crusher, of the rock “Upon directed.” a motion direct a opined Mr. Colombo that there was no safe defendant, every verdict for the reasonable method operators which could clean the fairly legitimate arising from inference rock Relying upon crusher chute. standard testimony, when considered its entire promulgated by the American National Stan- ty, favorably indulged plaintiff; must be (ANSI) dard Institute to-assist him in identi- and the court must assume true those fying place, hazards the work Mr. Colom- jury may properly find facts under potential bo determined that either of two Syllabus, Raleigh- the evidence. Nichols v. design prevented alterations could have ac- Co., 85[, Wyoming Coal 163 S.E. ’ (1) cess to the door: chute interlock de- (1932) 1, Syllabus, Point Jenkins v. ].” door, prevent opening vice to a the 250[, Chatterton, 143 808] W.Va. 100 S.E.2d permanent grate prevent person metal to a (1957).” Syl. Legg, Jividen v. Pt. accessing opening. from the chute door Mr. (1978). W.Va. emphasized Colombo also that the written supplied by regarding Grasan the materials Liability III. Grasan Products Claim maintenance, operation and of the rock crush- appropri- er did not instruct the user on the Appellants maintained that Gra cleaning ate method of the chute. san, crusher, as manufacturer of the rock operators “dangers failed to warn of the as morning following On the Mr. Colombo’s sociated with the foreseeable use and misuse testimony presentation jury, Grasan product.” They alleged of its further that testimony moved to strike Mr. Colombo’s- inherently dangerous in the machine was its entirety. granted its lower court Gra- provide failure safe and reliable means jury san’s motion to strike and asked the cleaning Appellants’ pri the chute. The testimony. disregard Mr. Colombo’s mary design evidence of defective was intro explained it had lower that done through testimony duced at trial by allowing “disservice” Mr. to tes- Colombo Colombo, professional of Mr. Keith licensed tify and reasoned as follows: engineer safety professional. and certified mining engineers profusion There are practical experience systems His included you up somebody and end with who safety analysis major companies such as (sic) engineer astronautieal from Flori- Marietta, Boeing, Martin and United Tech a real [H]e da.... seemed to have hard nologies. Mr. Colombo is a member of the coping time with the stuff and his obvious Society Safety Engineers, American unfamiliarity industry, with the with the Materials, Society Testing American industry, anything of the standards Association, the National Fire Protection having mining industry to do with the Systems Safety Society. just pretty obvious'.... There are various trial, very presented engineers Prior to deal with narrow areas Grasan had who request- expertise court with a motion in limine and do not have in other areas lower proposition I ing accept that the lower court intro- and don’t that it is prohibit the. testimony quite duction of Mr. Colombo’s based that flexible. expert’s that Mr. court must determine maintain that Colom- Appellants expertise particular covers the area of particular experience lack of within

bo’s opinion as to which the seeks to crushing rock mining or the. realm of field of testify. testimony as render his equipment does not general safety precautions inadmissible. Fields, syllabus point five of Overton v. any credibility They (1960), issues are contend 117 S.E.2d 598 we by permitting properly explained: more resolved “Whether a witness is information, all state an is a matter rests the benefit of to have of the trial court and its within the-discretion credibility, establishing an issue ordinarily ruling point will not than rather admissi- weight of clearly appears disturbed unless bility. discretion has been abused.” prop- that the lower court Grasan asserts remembered, “What must be howev striking erly exercised its discretion er, expert’ is' that there is no ‘best rule. upon based of Mr. Colombo of the rules Because of ‘liberal thrust’ education, expe- training, deficiencies in pertaining experts, circuit courts should industry. em- mining rience in the Grasan admissibility.” Gentry, err on the side of phasizes had not seen that Mr. Colombo 184, citing II W.Va. at morning question until the actual machine Cleckley, Franklin D. Handbook on Evidence crusher, trial, operated a rock had not 7-2(A) § Virginia Lawyers at 24. (Mine Safety knowledge had no of MSHA Gentry,3 acknowledged we that “we have Administration) regulations, and and Health clearly range of knowl stated that broad had no skills, edge, training qualify general. such, rejected any imposing notion of overly rigorous requirements expertise.” In the determination the admis 525, In 195 at 466 S.E.2d at 184. sibility testimony, guid we must be Works, Cargill v. Balloon 185 W.Va. by principles ed of Rule 702 of the West (1991), 142, explained we as 405 S.E.2d 642 Evidence, explaining Virginia Rules of follows:

follows: Virginia Rule of Evidence 702 West qual- enunciates the standard which the technical, scientific, specialized If or other wit- ification of individual as knowledge will assist the trier of fact to It cannot encom- ness will be determined. evidence or to determine a understand the n pass every specific nuance of a factual issue-, fact in a witness particular sought matter or a individual to skill, by knowledge, experience, qualified. simply requires that the be It may testify thereto training, or education must, skill, through knowledge, ex- witness in the form of an or otherwise. education, perience, training, possess or syllabus point Gentry Mangum, In five of scientific, technical, specialized or other 171, 512, 525, 195 W.Va. 184 knowledge will the trier of assist (1995), explained: this Court fact understand the evidence or to de- inter- termine a fact It cannot be issue. determining expert, In who is an a cir- preted require experience, ... that the two-step inqui- conduct a court should cuit education, training of or the individual First, ry. a circuit court must determine complete congruence with the nature of (a) proposed expert

whether the meets the sought proven. the issue to be experiential qualifi- educational or minimal 47, at at 646-47. Id. S.E.2d 146 — (b) in a field that is relevant to the cations (c) subject investigation component under which will An of this in additional Second, credibility are quiry fact. a circuit is that where issues of the trier of assist 6, Syl. Gentry, expert testimony Pt. Gentry specifically from the scientific method. dealt with 521, W.Va. at 466 S.E.2d at 180. in the realm of "scientific" evidence derived may weight present, proper rulings only focus be the We review these for an abuse admissibility. Only rarely rather than its of discretion. and in extraor- explained we, Gentry, dinary this Court the method circumstances will from the vis- credibility record, dealing appellate with concerns within ta of a cold reverse a testimony: admissible circuit on-the-spot judgment court’s con- cerning weighing probative the relative persuaded by We are not at all the circuit review, value and unfair effect. Our how- court’s concern that the witness was unfa ever, purpose must have some and that is specifies miliar with why we review under the abuse of discre- may law and how that law relate to the general, tion standard. an abuse of facts of this case. The failure of an discretion occurs when a material factor explain to be able all aspects of case or deserving significant weight ignored, controlling principle satisfactory improper when an factor upon, is relied only manner is relevant to the witness’s proper improper when all and no factors credibility. ... [a] “Should witness later are assessed but the circuit court makes define, adequately fail [explain], or de weighing serious mistake in them. care, op scribe the relevant standard of posing explore counsel is free to that weak 195 W.Va. at 466 S.E.2d at 179. testimony.” in the Friendship ness judice, In the case sub Mr. Colombo exhib- Koubek, Heights Assoc. v. Vlastimil ited knowledge safety extensive mecha- (4th Cir.1986); also, F.2d see safety nisms and general; issues in lack Corp., Dobson v. Eastern Associated Coal of distinctive workings 188 W.Va. mining industry should not render his (1992) (suggests that “[t]he fact that a Prohibiting inadmissible. the tes- proffered expert may be unfamiliar with timony upon familiarity based lack of with statutory pertinent definitions or stan mining industry as a whole illustrates grounds disqualification dards is not misapprehension of ques- the fundamental [; ... familiarity” lack of s]uch affects Appellants. tions raised This was not credibility, qualification testify). predominantly exclusively “mining” is- sue; rather, safety 466 S.E.2d at n. 23. it was a issue to be consistency approach princi of this appropriately more addressed exhaus- ples by tively by “safety” expert enunciated United States Su a such as Mr. Co- preme recognized in Gentry, jury Court was lombo. was asked to resolve the “ devices,’ questions follows: vigor operation ‘Conventional like narrow of the of the cross-examination, proper cleaning. ous careful instructions on chute and the methods of A proof, the burden safety engineer familiarity and rebuttal possessing with may chutes, appropriate conveyors, be more handling instead of the and material expert testimony amply ‘wholesale exclusion’ of un appear qualified would to address that potentially der Rule 702.” 195 W.Va. at S.E.2d issue would be more knowl- 185, quoting edgeable precise at Daubert Merrell Dow on the issues than an Pharmaceuticals, general knowledge 509 U.S. 113 with more of the 2786, 2798, 125 industry. regarding parame- S.Ct. L.Ed.2d Concerns expertise ters of Mr. Colombo’s could have While determination of whether cross-examination, through been addressed a witness is an state credibility as issues of rather than admissibil- court, typically rests with the circuit ity. abuse of discretion warrants reversal.4 In Gentry, note six of we discussed abuse of We conclude the lower court abused striking discretion standard: its discretion in of Mr. Gentry granting stringent.” 4. We stated in that "where the review must be more summary judgment dependent is on the exclu- at 178. expert testimony, judice, sion of itas is sub our not, commonly of a whether cited or or of the lower de novo review our Colombo. safety standard accepted and well-known the directed ver- decision on court’s ultimate or business of such within issue, of the the decision we reverse dict statute, rule, regulation or employer, which lower court.5 specifically applicable to the standard was Intent Claim Deliberate IV. Patterson working in- condition particular work statute, rule, volved, as contrasted with premised their civil Appellants requiring regulation generally or standard upon the deliberate against Patterson action equipment working or workplaces, safe § statute, Virginia 23-4- Code intent West conditions; 2(c)(2)(ii)(A-E). portions pertinent 4—2(c)(2)provide § Virginia Code (D) notwithstanding 23— the existence That (A) follows: subparagraphs the facts forth in set (C) hereof, employer never- through such immunity provided un- from suit exposed employee theless thereafter six-a, and under section der this section working condition in- specific unsafe such may only chapter, be lost article two of this tentionally; and against whom employer person or if the (E) employee exposed suf- That such so liability asserted acted with “deliberate injury death as a direct fered serious or may requirement be sat- intention”. This un- proximate specific result of such only if ... isfied working safe condition. (ii) determines, either The trier of fact Appellants The- claimed Patterson by through findings of fact made specific properly regarding train Mr. failed to Jones jury, in a trial without the court methods, cleaning alleging that chute safe jury through special interrogatories employees inserted their Patterson knew its trial, following facts that all of into the chute to clean the materials bodies proven: are Thus, Appel- lodged inside the chute.6 (A) working con- specific unsafe That argued they proved all five statuto- lants workplace pre- in the dition existed recovery ry requirements under de- strong high degree risk and a sented liberate intent statute. death; injury or probability of serious contended that it had instructed Patterson (B) subjective employer had a That the employees stand the chute while above appreciation of the exis- realization and cleaning no working specific unsafe con- tence of such being by utilized Mr. Jones. Pat- methods degree high of risk dition and training terson had sent Mr. Jones to a injury strong probability of serious course offered the West Office specific presented such unsafe death safety Safety, Training providing Health & condition; working machinery training operators (C) training specified that working chutes. This course specific That such unsafe body danger- in the chute placing a or one’s was condition was a violation of state statute, injury.7 in serious safety regulation, rule ous and could result federal or running, rulings regard- had told Although a court when the machine was "most repri- episode, ing about this and had been of evidence are reviewed un- Patterson admission evidence, however, standard, ap- ... an manded. There was no der an abuse of discretion any legal analysis pellate had realization that Mr. Jones court reviews do novo the Patterson cleaning by placing body underlying the chute his inside the State v. trial court’s decision.” 163, Guthrie, S.E.2d chute. 194 W.Va. 461 above, (1995). expressed As the standard of 186 designed training a video 7.The course included directed verdict determination is review for the working chutes. to teach safe methods of around also de novo. hangups specified that dirt in chute The video may spaces "at attempted subjec- hollow in the middle and Appellants to leave 6. The establish anyone any free and by introducing material can break moment tive realization ' caught injury. could sustain The video Virgil Mr. Cook inside" Cook a co-worker of Mr. Jones. proper method of apparently placed body further instructed that own in the chute ho against employers, eourt found evidence erate intention” actions The lower (1) specific working specifically, § support unsafe con W.Va.Code 23-4- to 2(c)(2)(iii)(B) [1994], (2) dition; subjective plaintiffs’ Pat relates realization specific more substantive law burden working condition; un- specific unsafe terson of a der the five-element test exposure Mr. W.Va.Code Jones to intentional 23-4-2(c)(2)(ii)(A)-(E) [1994], § but sylla in an unsafe condition. As we stated preexisting procedural applies law still for Inc., Shoney’s, point Mayles two of bus granting employers’ summary motions (1990): plain “A W.Va. 405 S.E.2d 15 and judgment directed verdict judgment, may ‘deliberate intention’ in tiff establish notwithstanding the verdict. against employer action for a work- civil injury by offering prove related evidence lower court examined evidence requirements provided specific five in presented by Appellants regarding (1983).” 28-4-2(c)(2)(ii) Sec. Ac W.Va.Code specific condition, working unsafe Patterson’s cord, Syl. Blake v. Pt. John Skidmore subjective thereof, allega- realization and the Stop, Truck exposure tion of intentional of Mr. Jones to (1997). Virginia § Code 23-4- Indulging every an unsafe condition. fa- 2(c)(2)(iii)(B) following guidance provides the Appellants, vorable consideration toward the reviewing allegations to courts of deliberate the lower court concluded that the directed when, intent: A court dismiss an action shall granted verdict should be favor of Patter- considering every all the and “after evidence son. In our novo de review of directed reasonably legitimately inference raised question, verdict we have reviewed the testi- thereby favorably plaintiff, most the mony presented on the deliberate intent is- shall is not determine there suffi sue, agree and we lower court’s every evidence find each one of cient conclusions. We therefore affirm that re- required proven” facts to be in the delib spect. erate intent statute. V. Conclusion 408 S.E.2d 321 five 2(c)(2)(ii)(A)-(E) suant Rules of Civil sidering “such motions are summary judgment) Sias v. W-P elements to Rule all of the evidence and Procedure, 56(c) (1991), ^[1994] Coal of the West W.Va.Code this Court do not exist Co., granted one or more of the when, every when, after con- held that' § (motion reason- 23-4- pur- pellants’ Grasan the directed verdict in favor Grasan lower court remand for further ed verdict in favor of Patterson. Remanded. Affirmed Based upon abused Part, claim. foregoing, its discretion in proceedings Reversed We affirm the direct- we find that the on the Part, granting Ap- RISOVICH, light inference in the favorable Judge sitting temporary able most plaintiff, assignment. there is insufficient evidence to every each find one of the aforestated (motion verdict).” for a

five elements directed participate. did not Justice SCOTT W.Va. at S.E.2d at 328. Justice, DAVIS, part, concurring in dissenting part: Syllabus point three of Sias ex (Filed 1999) plained: Nov. portion presepted dispositive This issues statute which autho- case two judicial by of for the Court. The first issue “prompt

rizes resolution” “delib- resolution dangerous cleaning top the and further tion which he knew was which was from down inserting any to training.” instructed workers refrain from violated his The accident was investi- part body Health, in the chute. gated Virginia by of Mine the West Office Training. investigator Safety, did not only 8. The lower court found: "The evidence of fact find a violation for failure to train by unsafe condition was the act committed an Sherman Jones when he his lack of cited Mr. Jones for care. body put posi- in a his propriety of trial court The unshakeable conclusion be reached the the concerned majority from decision case is the this Patterson granting judgment to defendant that, example, pediatrician having a no issue, majority Contracting, Inc. On this the skill, or experience, training, education granted correctly that the decided may knowledge surgery, in oral nevertheless of law Patterson judgment as a matter testify expert surgery proce- as an on oral majority’s I Inc. Contracting, concur the standards, lack dures and because or her issue, I a this as believe fair decision on skill, experience, training, of education light reading the the most of surgery presents in oral knowledge a credi- plaintiffs, clearly demon- favorable to the bility jury issue for the to determine. This is plaintiffs present the failed to strates that unacceptable an standard for the admission justiciable on each the elements evidence must, therefore, expert testimony. I dis- intent of ac- statutory deliberate cause majority’s from the sent the decision that tion. striking trial court abused his discretion in testimony. I do so rea- Colombo’s for two dispositive presented issue second First, qualify sons. did not as an Colombo the trial this Court concerned court’s deci- expert he in the area for which was render- expert presented by sion to strike Second, ing opinion. assuming arguendo, an plaintiffs through Keith A. Colom- the testify permitted that a rocket scientist is bo(hereinafter “Colombo”), to as an referred industry safety issue, mining on a Colombo’s expert engineering. The in aeronautical ma- testimony was unreliable. jority any question concerning concluded that credibility jury determina- Colombo’s Therefore, it error

tion. was reversible I. testimony. I disagree with strike Colombo’s majority’s of this the resolution issue. Were INAD- COLOMBO’S TESTIMONY WAS credibility, majori- truly one of issue HE MISSIBLE BECAUSE WAS NOT unassailably ty finding correct in would be QUALIFIED AN TO TESTIFY AS province trial court invaded EQUIPMENT EXPERT ON MINING However, jury. regarding the issue Co- SAFETY present question lombo credibili- did majority opinion in this case has taken but, ty; presented question reliability. many developed legal of this Court’s well principles, regarding expert form, the admission of basic Reduced to most issue convey testimony, and twisted them so toas concerning was whether or not a Colombo impression that this Court has historical- expert testimony give rocket can on scientist ly testify expert a witness to as allowed for which he issue experience, an area where he or has no she skill, absolutely experience, training, no edu- skill, training, knowledge. education or Until knowledge. majority cation con- has case, in this our law has decision state any experi- cluded that an without may testify never held that witness as an ence, skill, training, knowledge education or expert in’ an area in he or has no which she testifies, may in an area for which he or she skill, experience, training, education or testify nevertheless because knowledge. jury reject should be allowed to the testimo- ny- understand the —should Rule 702 of the Rules unqualified. my judgment, position Evidence enumerates the broad criteria majority taken in this has com- case a person may qualify expert. as an pletely disregarded body of law this person may qualify Rule 702 that a states developed skill, Court has admission of upon “knowledge, ex- based expert testimony. perience, training, or edueation[.]”1 Justice technical, scientific, provides: Rule "If of fact to understand to deter- the evidence or issue, specialized other will an assist the trier mine a fact in a witness as Cleckley experience general a workable test for de in the established area of aeronauti- person safety engineering. cal termining expert is an If this case whether involved issues, safety aeronautical Colombo Gentry would Mangum, the seminal caseof probably qualify However, expert. as an (1995). this Syllabus 466 S.E.2d 171 safety engineering case involved devices for a Gentry point 5 states: crushing rock machine. The determining expert, who is an a cir- any void of record is evidence that Colombo inqui- two-step cuit court should conduct a skill, experience, had training, education or First, ry. a circuit court must determine knowledge regarding engineering safety de- (a) expert proposed whether the meets piece such a mining equipment. vices for qualifi- experiential minimal or educational majority opines that because Colombo (b) in field that to the cations is relevant expertise safety engineer as a in aero- (c) subject investigation under which will devices, qualified nautical he is therefore Second, assist the trier of fact. a circuit testify expert an engineering safety as expert’s court must that determine mining equipment. majori- devices for expertise particular area of covers the ty’s reasoning anyone expertise allows opinion expert as to which seeks to specific in a testify, experi- area to without testify. ence, skill, training, knowledge, or education Although majority opinion syl- quoted expert as an or specific outside of her point Gentry, complete- words, labus 5 of failed to other majority, by area.3 In this decision, ly perform analysis any under funda- has announced that West engineer bridge may testify an safety mental test to determine whether as Colombo expert any issue, an about engineering safety qualified was on the issue though he experience, even or she no has opinion. which he was asked to render an skill, training, education or about words, assumed, majority opinion other safety engineering bridge issues outside contrary overwhelming safety. simply accept I cannot this result. Colombo on the issue opinion. which he was asked render an assumption, majority With this ana- then II. lyzes the “qualified” issue in terms of a ex- pert. assump- This forced and unreasonable COLOMBO’S TESTIMONY WAS majority lead the tion reason that this case INADMISSIBLE BECAUSE credibility turns on the not issue IT WAS NOT RELIABLE admissibility. assumption Both the and con- my position firm While it is that Colombo wrong. are clusion qualify did as an not render part Gentry Under the first test it safety, categori- on mine were I even proffered expert must be meets shown that wrong, cally Colombo’s was still experiential quali- the minimal educational or properly excluded because it was unreliable. fications in a field is relevant look than One need no further the recent subject investigation. under did Colombo Supreme decision the United States Court satisfy the initial test.2 The record Company, Kumho Tire Ltd. v. Carmicha- el, unquestionably this ease is clear that Colom- 526 U.S. 119 S.Ct. 143 L.Ed.2d (1999), by education, training Gentry analysis. was an bo follows the skill, expert by knowledge, experience, training, majority opinion reaches conclusion testify may "[tjhis education thereto in the form of an predominately exclusively was not opinion or otherwise." wrong. 'mining' issue.” Such a statement is absolutely exclusively This case about part 2. There is no need to discuss the second mining industry safety devices for a rock crush- Gentry satisfy Colombo test because does not ing machine. part conjunctive the first test. obligation is, gatekeeping under which a expert testimony must be scruti- rules any That “sci- depended upon a distinction between reliability. relevancy and nized for “technical” or “oth- entific” plaintiffs in were involved in The Kumho knowledge. no specialized” er There is accident that occurred after an automobile the the clear line divides one from plaintiffs The out. tire on their minivan blew Disciplines engineering such as others. in a court federal district filed action knowledge. upon scientific rest manufacturer, alleging manu- against the tire Kumho, 1174. 526 U.S. at S.Ct. at The design defect in the tire. facturing or testimony sought to the of an plaintiffs use Supreme Court further concluded: The analysis failure engineering expert in tire judge must have considerable [T]he tire opinion the blew out render an leeway particular in in a case how deciding design defect. because of manufacture determining particu- go about whether in limine to The filed a motion defendant expert testimony lar is reliable. That is by testimony plaintiffs’ expert. the preclude say, spe- trial court the should consider granted the motion federal district factors identified in where cific Daubert expert’s testimony concluding after that the relia- they are reasonable measures of the methodology inadmissible because testimony. bility expert of expert was unreliable. used Kumho, 1176. 526 U.S. at 119 S.Ct. at Circuit the dis- appeal On Eleventh Supreme issue The next addressed ruling trict was reversed. The Court court’s Kumho Court in was whether the district Appeals that the district court im- of found excluding its court abused discretion expert properly applied the test for scientific plaintiffs’ testimony engineering of tire ex- v. testimony established in Daubert Merrell pert. observed: Pharmaceuticals, Dow U.S. [the The District Court did doubt (1993).4 113 S.Ct. 125 L.Ed.2d 469 Un- expert’s] qualifications, which included a reasoning Appeals, of der of the Court degree engineering, in mechanical masters only applicable the Daubert test was to scien- America, Inc., years’ work at Michelin testimony.5 Supreme tific Court testimony a tire failure consultant rejected Appeals’ the Court limitation Rather, in other tort cases. it excluded Supreme experts.6 Daubert to scientific because, testimony despite quali- those Court reasoned follows: fications, doubted, initially it and then difficult, prove impossi- if not unreliable, [I]t would methodology found “the em- ble, evidentiary ployed by judges analyzing to administer the data theory’s adopted potential 4.This test Court the Daubert for admis scientific actual rate error testimony known; (d) Bu 203 sion of racker, scientific Wilt v. theory is the scientific is whether 443 S.E.2d generally accepted commu- within scientific (1993) ("We analysis conclude that Daubert’s nity.”). analyzing Federal Rule the should be followed admissibility expert testimony under Rule Gentry this extended the Court DaubertfWilt Virginia 702 of the West Rules of Evidence. The analysis experts. to all inquiry trial court's initial must consider whether testimony is based assertion on an or infer methodology. ence derived from Moreover, Butler, scientific Highways 6. West Division must be relevant to a Court fact made ity by considering issue. Further assessment should then be adopt holding specifically declined to regard testimony's reliabil reflection, Upon it obvious that Kumho. closer underlying scientific meth holding Gentry. That Kumho’s is consistent reasoning. odology and includes This an assess is, Gentry took the both and Kumho Wilt/Daubert (a) theory ment whether the scientific and its applicable analysis simply all made tested; (b) conclusion can be and have been proffered expert testimony. theory subjected whether the scientific to has been (c) peer publication; review whether inspection, capacity burglary in the and the tection protection obtained visual capacity in industry. used the safe He ac- basis, analy- any, if for an scientific such only knowledge that knowledged of sis.” acquired preparation safes in was for this Kumho, at at 1176- S.Ct. through trial discussions he initiated U.S. sold, distributed, people with who or re- paired safes. case, careful in the After a review of facts case, ... expert In this an in the rele- Supreme concluded the dis the Court that design vant field would be familiar with the testimony was correct in excluding trict court industry of and manufacture safes and the plaintiffs’ expert. grants of “Rule 702 the regarding standards safes. is no There judge discretionary authority, district re proof no reason to believe that an such abuse, for its to reliabili viewable determine rely expert would on with conversations ty particular light in facts and circum personnel identify store to of a standard Kumho, particular stances of case.” burglar protection capacity. S.Ct. at 1179. U.S. ... absence of industry In the an stan- deterrence, burglar dard for it be would Gentry, syllabus point 3 of Justice speculative misleading expert for the plainly, clearly unequivocally Cleckley opine to that safe did not that meet require “[t]he held that first and universal standard..., undefined cir- Under these admissibility [expert] ment for of evi cumstances, permit it was error to Red- that dence is evidence be both must testify expert man’s that the was safe ‘rehable’ and ‘relevant.’” The Cir Fourth “burglar not deterrent.” Appeals cuit Court addressed issue of Redman, F.3d at 1179-1180. reliability expert’s testimony of an in Co., Redman John D. Brush & F.3d The decision Redman is in important (4th Cir.1997). In Redman the owner First, Redman recognized several reasons. burglarized products liability of a safe filed a merely person that a in expert because is an manufacturer, alleging against action safe not metallurgy, immediately qualify does that an person opinion on render whether negligently that designed. the safe was negligently designed. metal safe was Sec- present trial allowed the plaintiff court ond, Redman acknowledged person that a expert testimony showing manufacturing general metallurgical knowledge could with design defect in the the safe. render such an on metal whether a ap plaintiff. returned verdict for the On designed, negligently person safe if was such peal the Fourth Circuit reversed. adequate knowledge obtained to formulate Third, Red- opinion. importantly, and most judgment Circuit Fourth reversed the man held person only general for a Redman, part, found the because it knowledge testify ex- metallurgical admitting district court committed error in safe, design pert negligent on of a the source plaintiffs metallurgic ex- knowledge person’s must reliable. be Redman pert. held: proceeding, ex- In the instant Colombo’s problem admissibility with the safe- pertise engineering was in aeronautical testimony] expert [the Redman’s ty. expert Colombo was asked to render an testify industry was not about engineering safety requirements opinion on analyzed He had never standards. before mining piece equipment. for a For Co- safe, engaged or de- the manufacture engineering as an qualify lombo to safes, training sign any re- received safety requirements mining for a importantly, garding safes. Even more machine, crushing rock he had to demon- personally he with the familiar knowledge the area that strate would systems pro- fire an actual field rating consistent with standards admissibility. with the safety. After the trial Consistent United mining equipment testimony, Daubert, to Colombo’s Supreme ruling in States Court’s listened did not court concluded that Colombo requirement have made cornerstone we equipment have ... be made in “assessment should field safety that an would have testimony’s reliability regard Lion, See Black v. Food safety. of mine considering underlying by scientific meth Cir.1999) (“The (5th Inc., 308, 311 171 F.3d Buracker, v. Wilt odology reasoning.” and gate- overarching goal [the court’s] of (1993).7 39, 46, 196, 203 191 W.Va. 443 S.E.2d requirement ... is to ensure the keeping Mayhorn v. Logan syllabus point 4 In of testimony. expert reliability relevancy and of Foundation, 42, Medical 193 W.Va. 454 expert, an whether make certain that It is to (1994) unequivocally 87 held that we testimony upon professional studies or basing in the court- personal experience, employs if expert’s opinion “an is admissible the basic rigor of that the same level intellectual room methodology employed by expert the in ar practice characterizes the of the scientifically riving opinion at his is techni field.”). relevant cally properly applied.” valid and Justice facts, Notwithstanding majority the these Cleckley that cautioned this Court “[e]vi- opinion that: Colombo exhibited states “Mr. speculation which is than dence no more is knowledge safety of mechanisms extensive not admissible under Rule 702.” State v. safety general; his lack of and issues LaRock, 613, 470 S.E.2d workings of the distinctive (1996). majority 626 confuses the “[T]he render his testi- should not of [credibility] witness —a matter majority mony inadmissible.” The conceded reliability of his for the the or her —with nothing knew about the that issue Colombo methodology initially for matter the trial opin- was to render an upon which he called —a' Unisys Savings Litiga In re Plan judge.” Yet, majority ion. concluded be- tion, (3d Cir.1999) competent safety 145, 161 (Becker, he was in other mat- cause 173 F.3d reach was reliable by relying upon the fact that Colombo was reach his ity disregarded this sis, upon Rule 702 and this Court’s familiar with ters his dards. -What Colombo used the Colombo that the ANSI equipment majority and therefore inadmissible. were testimony was admissible. Based logical opinion. Unfortunately, mining industry not the Colombo’s further at and correct conclusion to Cir.1986) majority wrong issue. standards critical applicable supports ANSI standards to testimony failed fact and deter- relied analy- Gentry other ANSI versions for its decision to mention upon by was un- words, major- stan- Merrell Dow Heat States have been 46, speculate 579, opinion Wilt v. and Cir.1999) on set out dence.'”). J. dissenting). replaced 113 S.Ct. Systems, Inc., v. has dismantled the Charley, (“[N]othing in the Rules (“Rule In intended fashions Pharmaceuticals, 196, my judgment, See ^[702] 203 Buracker, unsupported 125 L.Ed.2d 469 credibility. 789 Newman v. F.3d (1993) imposes permit F.2d reliability and Daubert v. Inc., 191 269, See United experts 1266 appears Hy-Way 509 U.S. majority 270 ... evi special criteri (1993) (10th (4th 39, question credibility gatekeeping obligation trial judge mined the matter on the jury. that an offered ensure Harris, reliable”); United States is use of Colombo’s outdated ANSI standards (6th Cir.1999) (“[T]his goes reliability ultimately F.3d to the issue Circuit that, determining El 7. Daubert made clear when Commerce Dorado v. Associated Milk Pro- ducers, (8th Cir.1999) expert’s opinion whether the has reliable foun- F.3d dation, ("The analysis judge’s solely the trial ... be focus of the district court’s "focus must principles methodology, proffered appropriately solely not on the evidence limited con- Daubert, they generate.” principles methodology, not on con- clusions that U.S. they generate.”). 113 S.Ct. at National Bank clusions that broadly reliability applied knowledge; testimony Daubert’s ... has must assist the trier of fact.” I find it diffi- analysis to all evidence offered under Rule cult to believe Colombo’s inaccurate and 702.”); Corp., v. McGhan Allison Medical unreliable could “assist the trier of (“While (11th Cir.1999) 184 F.3d fact.”8 may bring inquiries Daubert meticulous donning judges under criticism for white summary, reliability concept anis making that are coats and determinations issue con- for trial determination. The expertise, Supreme field of outside their credibility cept jury question. is a In this objec- obviously case, Court has deemed this less majority has confused the two is- such, forth, and for the dumping question- sues. As reasons set barrage tionable than part respectfully I concur in dissent jury, evidence on a who would able scientific part majority’s case. from decision likely equipped judge even less than the I May- am to state authorized that Justice reliability to make and relevance determina- joins in this nard me dissent. judge likely more than the tions and expert’s mystique.”). awestruck addressing the issue of testimo- 524,

ny Gentry, 195 W.Va. at 466 S.E.2d at

183, this Court noted that “Rule has (1) major requirements:

three the witness (2) expert; must

must be scientific,

testify specialized technical or OH-9, Inc., Appalachian keep 8. v. 203 W.Va. See Short unreliable and irrelevant information 253, 246, 124, ("[T]he 507 S.E.2d inability from the because of its to assist assisting of Rule 702 is that of the fact essence determinations, potential factual to create comprehension through expert finder’s testimo confusion, value.”); probative and its lack of ny.”); Virginia, v. Rite Aid Tanner AB, 257, Westberryv. Gislaved Gummi 178 F.3d 654 n. n. Cir.1999) ("[T]he (4th obligation on] a [is (1995) ("Helpfulness jury ... is the district to determine testi whether 702.”). Rule touchstone of The circuit court mony prior is reliable and relevant to admis properly found that the trier of fact could not be sion”); Cortes-Irizarry Corporacion De Insular by testimony proffered assisted from a (1st Cir.1997) ("A Seguros, F.3d nothing absolutely who knew witness about the setting normally provide oper trial will the best testifying. "[T]he issue to he was ating triage for the environment which Daubert granted a motion court heard evidence inqui record, complex [G]iven demands.... factual testimony.... to strike the On there Daubert, guess ry required principled way courts will be hard- is no for us to second ruling; pressed [should] nor we strain to so.” LaR do all but the most cases to clearcut ock, W.Va. at 470 S.E.2d at See gauge reliability expert proof on a truncat Corp., Allison v. McGhan Medical 184 F.3d record.”). ed (11th Cir.1999) ("The judge’s role is 1311-1312

Case Details

Case Name: Jones v. Patterson Contracting, Inc.

Court Name: West Virginia Supreme Court

Date Published: Nov 24, 1999

Citation: 524 S.E.2d 915

Docket Number: 25959, 25960

Court Abbreviation: W. Va.